Complete Brady disclosure is a must says Fairfax criminal lawyer- SCOTUS’s Glossip ruling demands nothing less

Complete disclosure by Virginia assistant commonwealth attorneys — and all prosecutors — is essential under federal Supreme Court jurisprudence. The Supreme Court in 2025 made that clear in the starkest terms. Glossip v. Oklahoma, ___ U.S. ___, 2025 WL 594736 (2025). Glossip was issued shortly after a prosecutor went out of his way to tell me, in my role as a Fairfax criminal lawyer, what I have long known about the Virginia procedural rule’s very limited discovery obligations under state Supreme Court Rule 7C:5. That pronouncement assisted him concerning the court’s discovery order’s deadline for providing Rule 7C:5 material, but detracted not one iota from the prosecutor’s very grave and serious obligation to provide Brady / exculpatory evidence, which the federal rules of criminal procedure take so seriously as to state: “In all criminal proceedings, on the first scheduled court date when both prosecutor and defense counsel are present, the judge shall issue an oral and written order to prosecution and defense counsel that confirms the disclosure obligation of the prosecutor under Brady v. Maryland, 373 U.S. 83 (1963) and its progeny, and the possible consequences of violating such order under applicable law.” Fed. R. Crim. Proc. 5(f).

Leaving behind the days when as a Fairfax criminal lawyer I would be orally provided misdemeanor discovery from the prosecutor in that county, learned only on the trial date by the by the assistant commonwealth’s attorney

In this day and age, most Virginia prosecutors provide me police reports and incident video prior to the trial date, which is more complete disclosure than the following scenario. As a Fairfax criminal lawyer, I saw the contrast to that in this county when first practicing here starting over twenty years ago, when prosecutors in misdemeanor cases often did not get assigned their cases much more than a day in advance and did not provide me discovery until the day of trial, and orally. Judges in the county would often not require providing misdemeanor discovery earlier than the first trial date, instead being liberal about granting a defense continuance request to deal with such same-day discovery provision. When  in those early days I told a prosecutor in one Northern Virginia county that incident video needed to be provided to me because incident video usually includes Brady evidence (let alone Rule 7C:5 evidence in the form of my client’s statements to police) — particularly with Virginia DUI cases — he improvidently disagreed with that idea. When a prosecutor only takes a case the day of trial or soon before, s/he has the challenge of obtaining and reviewing all evidence in the case that must be reviewed for the assistant commonwealth’s attorney to assure that s/he is fully complying with their disclosure obligations under Brady, state discovery rules and court orders. The chief prosecutor in a county adjoining Fairfax — who used to include criminal defense in her practice — was wise to publicly state that her office is transparent even while her office’s prosecutors fully litigate against criminal defendants.

Complete disclosure under Brady and governing Virginia state discovery rules and judicial evidentiary orders reduce headaches for judges, prosecutors and the public

Brady is a six-decades firmly entrenched obligation on prosecutors to provide complete and timely Brady disclosure. Fairfax prosecutors and prosecutors in other high-population areas face so many challenges, pressures and obligations in their jobs that they will best fulfill their Brady and discovery rule obligations by erring on the side of over-disclosing than under-disclosing evidence. The federal Supreme Court, which only has three non-conservative justices out of the nine, in Glossip reiterates the serious potential consequences of prosecutors not upholding their Brady obligations. Glossip was sentenced to death at a jury trial on the testimony of Sneed (testifying that Glossip offered Sneed money to murder Glossip’s job supervisor), where the prosecution failed to disclose to Glossip’s lawyer that Sneed was prescribed lithium by the jail psychiatrist for bipolar disorder, and failed timely to turn over boxes of evidence that were material to challenging Glossip’s prosecution. On top of that, in violation of the court’s rule on witnesses / witness sequestration order barring non-party witnesses from discussing the case during trial, in mid-trial, the prosecutor asked Sneed’s lawyer to be able to speak with him about his use of a knife during the murder, where his admitted murder weapon was a baseball bat. On top of that, Glossip says the prosecutor failed to correct Sneed’s false testimony. Some of the most key deciding language in Glossip is: “Although the prosecution’s failure to correct Sneed’s false testimony was a material Napue violation on its own, additional conduct by the prosecution further undermines confidence in the verdict. The attorney general has confessed to ‘”violation of the rule of sequestration”‘ with respect to [prosecutor] Smothermon’s apparent midtrial attempt to speak with Sneed about the knife, as well as to “‘destruction of evidence,’” including the hotel’s financial records and items Glossip and Sneed allegedly handled in Van Treese’s room. See Brief for Respondent 13; 3 App. 935 (prosecutor Ackley attesting under oath that ‘I was informed that a box of evidence containing 10 items was destroyed by the Oklahoma City Police Department. . . . It is likely that I was aware of that fact during the 2004 retrial . . . . That this happened horrifies me’); Independent Investigation of State v. Richard E. Glossip, at 7, 12–13, 41–43 (cataloging destroyed items). In addition, the eight boxes of documents released to Glossip included statements from Sneed evincing a desire to recant his testimony and witness notes with details not previously turned over to the defense.” Glossip.

Your Fairfax criminal lawyer / Virginia defense attorney needs to protect your right to timely obtain the evidence to which you are entitled

If all the foregoing violations could take place against Glossip with evidence disclosure that was the opposite of complete, that as a death penalty case probably involved plenty of time invested by both the defense and prosecution (making the prosecutor all the more in a position to know what evidence needed to be turned over to the defense), it could happen anywhere, at the very least out of oversights by prosecutors with heavy word demands and prosecutors whose views of their Brady and other discovery obligations are more narrow than governing judges would agree. Your criminal defense lawyer needs to fully protect your rights to timely receive such evidence.

Fairfax criminal lawyer Jonathan Katz knows that your Virginia criminal and DUI defense is proverbial war, that requires your attorney to put your interests above any friendship or other ongoing relationship s/he has with your prosecutor, judge or the police / law enforcement officers (LEOs) in your case. For your free initial in-person confidential consultation with Jon Katz about your court-pending prosecution, call 703-383-1100, jon@KatzJustice.com and (text) 571-406-7268.